Judge Ross's homeless ruling disorders public space

Tokyo’s Ueno Park has long been famous for the beauty of its spring season cherry blossoms. In recent years, however, the park has acquired a less savory reputation as the site of an ever-spreading tent city of the homeless.

So it goes in many of the world’s cities. Tokyo, St. Petersburg, Florida, San Diego, Barcelona, London and Washington, D.C.; I’ve visited these cities in recent years, and in each one I’ve seen parks that have been taken over by the homeless. Last month in Washington, for example, the parks near my hotel — Franklin Square, Mount Vernon Square and McPherson Square— were occupied by down-and-out patrons, some of whom asserted an exclusive claim to the benches I noticed that area residents, office workers and tourists avoided entering the parks, where shopping carts sat parked on pathways and sleeping bags were beneath the trees.

Canadians cities may well experience something similar if a ruling by Madam Justice Carol Ross of the British Columbia Supreme Court isn’t overturned. Late last week, she ruled that Victoria’s homeless have a right to set up tents, tarps and other forms of temporary shelter in the city’s public spaces, including its most beautiful park, Beacon Hill.

“The prohibition on taking a temporary abode contained in the Bylaws and operational policy (of the city) constitutes an interference with the life, liberty and security of the person of these homeless people,” she declared. “The prohibition is both arbitrary and over-broad and hence not consistent with the principles of fundamental justice.”

Homeless advocates quickly took advantage of the ruling, setting up tarp-and-cardboard shelters in the park, claiming vindication of their right to sleep where they please. And, no doubt, every municipal official across Canada groaned at the implications of yet another unelected judge making social policy.

I know Beacon Hill Park well, having lived nearby for several years. Lovely old homes and well-maintained condominiums surround the park, which overlooks Juan de Fuca Strait. Retirees who enjoy the park for its beauty and tranquility occupy many of the homes. Does Justice Ross’s notion of fundamental rights take into account their “right” not to have a public space whose upkeep they’ve financed through their property taxes turned into a no-go zone?

All communities have public spaces — sidewalks, cycling paths, beaches, roadways and parks — where people gather. However, if these spaces are to be gathering places they require patrons to behave in ways different from those that they may indulge in private. You behave respectfully towards others in the expectation that they will reciprocate.

Or, to put it differently, public areas constitute a shared space where prevailing standards of safety, order and decency take precedence for the sake of all. It is simply not intelligible to abandon formal social controls on behaviour — laws against vagrancy, loitering and public drunkenness, for example — for the sake of spurious “rights” that are, in reality, an excuse for private indulgences. That way lies disorder.

The traditional notion that citizens are obliged to behave themselves for the sake of a greater social good was effectively abandoned in the 1960s and 1970s. In Canada, the Trudeau government rescinded vagrancy laws in 1972. Laws against vagrancy and public misbehaviour gradually surrendered to the if-it-feels-good-do-it mantra of the era. It didn’t help that it was fashionable to regard mental illness as “an artificial construct for oppressing nonconformists,” as City Journal contributor Heather MacDonald wrote last year.

By the 1980s, governments across North America were emptying asylums and ending involuntary commitments or treatments, notes MacDonald. As a result, drug addicts and the mentally ill started cycling between the streets (or parks), jail and short-term care facilities. The era of the homeless was born.

Naturally, the homeless required servicing. Hence, the povertariat — welfare agencies, social advocates, health care workers, lawyers, etc. — emerged. The more governments spent on the homeless the more programs the povertariat demanded — from drop-in centres and drug injection sites to food depots, shelters and, as it now seems, parks for tent cities. The povertariat seldom acknowledges that citizens who act responsibly — property owners around Beacon Hill Park, for example — have rights, too.

I suspect that most people, unlike judges, think public spaces should be used in a manner that is consistent with traditional community standards. Unfortunately, those standards seem to be abandoned in tent cities, at least outside Japan. In Ueno Park, the homeless sweep up the leaves, recycle their bottles and cans and make use of the public toilets.

In Canadian cities, however, the judge’s ruling is likely to add to the growing disorder. “Just ask Toronto, which tolerated a squatters’ settlement on private land back in 2002,” Globe and Mail columnist Margaret Wente notes. “It was plagued by drugs, disease, theft, violence and prostitution, to say nothing of sanitation issues.”

In Victoria, too, city officials had to spend $120,000 to clean up the mess left by squatters who three years ago occupied Cridge Park (where, by the by, police found “street men” using a 14-year-old girl for sex).

And so it goes, at least until the homeless occupy courthouse lawns and judges’ front yards.

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